HOA Jurisdiction in a Town

I am a Board member who is trying to help resolve an issue that has been ongoing for some time now.

We want to file a nuisance complaint here in our Town for a continual pooping dog who is not cleaned up after. Our Management Company has sent numerous warning letters to the homeowner, levied fines, but to no avail. The homeowner is in the process of foreclosure and just does not care to comply. The lawn mowing people can't mow in the area due to the amount of excrement.

Neighbors have witnessed the animal being staked outside their door, which is also against our rules. They have received letters about that as well.

I spoke with a Town Clerk, hoping to get information on filing a formal complaint with the Town Justice. I was told me that because we are a HOA, that we have to take care of it. If the dog poops on Village/Town property, then they can handle it.

I was also told that no complaint has ever been file/heard in our Town court for this type of nuisance.

The dog excrement is located on Common Area. Being an HOA, can we legally file a formal complaint with the Town? We currently have an opening for a Dog Control person, so the job is not being done to any full extent.

This is New York State.

I concur with AugustinD's first and third suggestions. You should already be talking to your association attorney about this, especially if the homeowner is in foreclosure. You should have filed a lien already which might have given you a small chance of getting some money. I say small because the mortgage company usually takes priority over many liens unless you live in a state where whoever files a lien first is first in line to get any money (except for the government which will almost always get theirs before anyone else).

You could clean up the area and bill the owner's account, but that doesn't guarantee you'll get any money. You'd likely have to file some sort of lawsuit against him (depending on the amount of money you want to sue him for, Small Claims Court might be enough). Even then, you still have the issue of actually collecting and if this guy is letting the mortgage company take back the house, I doubt if he'll care about a lawsuit. The lawsuit should hit his credit report and that could prevent him from getting additional credit somewhere - that may be the best you can hope fore.

You said there's an opening for a dog (animal control) person - is that with the city or your HOA? If it's the town, does it have anyone else who does the job? If so, you might be able to file a complaint with them - in some areas, they clean up the mess and then the bill gets tacked on to fees and whatnot the owner would have to pay the city. This works like a lien in that the house goes nowhere until the city gets paid.

So what have we learned? Fines are ok, but they don't mean the behavior will stop, especially if you don't follow up with legal action. If it becomes necessary to file a lien because assessments aren't being paid, do it quickly. If you find a foreclosure is coming after your lien is filed, wait and see what happens. In a perfect world, the owner would be dumped and the house sold - after the mortgage company gets its money, the association gets the rest and it's enough to cover attorneys fees and other legal expenses incurred in pursuing the debt.

Unfortunately, in the real world, this rarely happens and the association ends up writing off the debt (this was the story of my 5 years as treasurer of my HOA/!) You might be able to go on and file a 1099-C with the IRS for the unpaid amount. I believe this would make that unpaid amount income for the homeowner and therefore taxable. If it's high enough and added to his/her bill, that could make life uncomfortable. On the other hand, you'll have to stop pursuing the debt, even if he/she ends up hitting the lottery. Talk with your attorney and your accountant to see what your options are and what'll work best for you.

I wish I had more suggestions, but I suspect this won't end until this guy leaves - it may be best to clean up the mess and pray he gets kicked out and takes the dog with him (or the dog gets fed up for other reasons and runs away). PLEASE DON'T DO ANYTHING STUPID LIKE TRYING TO KIDNAP OR POISON THE DOG -that won't end well.